Rights and Conventions
Something Norm said today that I’ve been wondering about. I can’t quite figure out how it works…
There’s a sense in which all concepts are social constructs, but that doesn’t necessarily mean – though it sometimes does mean – that what the concepts refer to are merely a matter of convention, of moral and cultural context, or what have you. It is true that some of the rights a person enjoys are a consequence of belonging to a particular community (your right to a British passport), or are relative to a given status she enjoys (as an old age pensioner), or the result of his past actions (as the party to a contract of sale). But there are other rights which a person possesses simply in virtue of being a human being. This is why we call them basic human rights. The right against being tortured is one of them. Even the most repugnant of individuals and those guilty of grave crimes, equally those merely suspected of some crime, share with everyone else the right not to be tortured. So the policy of not returning people to countries in which they face the danger of being subjected to torture ought to be upheld and defended.
There’s a whole large literature about this, of which I have read perhaps a page or two, so I’m stumbling around in the dark here, but – I don’t see how human rights can be anything other than a matter of convention. I don’t see how they can be anything other than social. Suppose you’re in a canoe paddling up a river (I read an account of just such a situation by an Australian philosopher once) and you’re attacked by a crocodile. You have a human right not to be tortured, which the crocodile is flagrantly disregarding. And – what? Nothing. What do human rights mean in such a situation? Nothing, that I can see. Surely human rights depend – quite heavily – on enforcement, laws, protection, recognition. So surely as a matter of brute fact, it is the case that all the rights a person enjoys are a consequence of belonging to a particular community – if they are real rights that she really does enjoy, at least, as opposed to being rights that no one in her world pays the smallest attention to. Some societies – a lot of them, actually, unfortunately – don’t respect human rights, or respect some but not others. Some human rights appear to be doomed for the foreseeable future in Iraq, thanks to the role of Islam in the constitution. So in what sense are rights not conventional? What does it mean to possess rights that are not enforced? Is it just a way of referring to rights we think people ought to have? I certainly have no problem with that; I’ve been talking about violations of [what ought to be] women’s rights in Niger, Pakistan, Guatemala, China, all over the place lately. But even then I don’t see how that makes such rights not a convention. We think women ought to have them, other people don’t; we can’t hold up anything labeled ‘human rights’ to show the other people and silence them once and for all. I wish we could, but we can’t.
Update: Norm points out that I don’t actually disagree with him after all. Since I said in an email message, “But I don’t mean that I think rights are a ‘mere’ convention – I’m happy to say they’re more than a convention – but I don’t see how they can escape being a convention too” – when he had said in the post I was wondering about, “There’s a sense in which all concepts are social constructs, but that doesn’t necessarily mean – though it sometimes does mean – that what the concepts refer to are merely a matter of convention, of moral and cultural context, or what have you.” (emphasis added) Well don’t I feel silly. I’m not quite sure whether I talked myself into something, or simply ignored the word ‘merely’ the first time and thus misread him* – but either way I’m a simp. Oh well. I quite enjoy talking about what kind of thing rights are, so it doesn’t matter – apart from disagreeing with Norm when I didn’t of course. But I have a right to be forgiven, so I’m sure I will be.
*Close reading! How many times do I have to tell you!
OB,
I was about to remark in the Juan Cole thread that I never described you as a liberal hawk. But now I see from this post I can actually classify you, which I couldn’t do before. You are, it seems, a tragic realist: “the strong do what they want and the weak endure what they must”.
As for Geras, it’s the residue of the Natural Law tradition, perhaps. Actually I have often wondered what foundations lie under his moral principles. He inspired several CT posts by John Quiggin, who basically reckons that Geras wants to have his cake and eat it when it comes to the ethics of war: consequentialism beforehand, just-war theory when the butcher’s bill arrives.
Cripes that was a horrible mixed metaphor: cake and a butcher’s bill. Preceded by a highly speculative inference about your political philosophy. My apologies. I shouldn’t post comments when I’m just in from the pub.
‘Sokay, Kevin.
And I’m not a tragic realist! I hate it – really hate it – when people say ‘That’s just how things are, get used to it.’ That drives me nuts. No, I don’t think the weak [should] endure what they must! I mean, as a brute tautological fact, they do endure what they must, but I certainly don’t think they should put up with it. God no. I think they (we) should fight like hell, and spread the reach of human rights until there is no spot of the globe where they don’t rule. But I still don’t think that means we are born with human rights the way we are born with ribs or eyes. I don’t think human rights are a meaningful concept until humans agree on them – and surely that does make them a convention.
I’m more of a nominalist than a realist, at least in this area. I don’t see how human rights and morals can be anything other than human conventions.
That’s eloquent, Don.
I hope it’s clear that I’m not saying this in order to argue that all conventions are okay or any such crap. I think human rights are a good convention, one of the best. But as you say, only people can defend the line. I don’t know who else is going to do it. Whoever that might be hasn’t done a spectacular job in the past, so I think we’d better take over.
Under the current usage of the term ‘human rights’, I very much doubt the slave trade could ever have been ended. Doing so would have violated the rights of legal persons (i.e. merchants with lawyers), while those, say, thrown overboard from slaver ships would have been sadly outside the relevant jurisdiction.
The relationship to current pro-terrorism laws, and the way they deny the basic right of justice to Kashmiris and Algerians mutilated by UK residents, should be obvious.
soru
Funny, that’s exactly what I’ve just said to Norm in email. Well not exactly but close – that slaveowners were utterly convinced that abolition was a violation of their rights.
It seems to me that rights are like grievances: both have to be evaluated on their merits. Anyone can (and does) claim to have a grievance, anyone can (and does) claim to have rights.
Actually, there’s a number of United Nations agreements on human rights one could hold up (http://www.hrweb.org/legal/undocs.html#CPR). No, of course they have not stopped all human rights violations, nor silenced anyone who advocates regressive social systems.
Alan Dershowitz (yes, the torture guy) has written a book, Rights from Wrongs, in which he argues that we need the concept of human rights to trump the laws and forestall the legalistic defenses of nasty behavior like slavery and honor killings. He argues that we work out an agreement on the specific contents of such a right as a response to a particular historical wrong which we want to prevent in the future.
Which sounds remarkably sensible, until you realise the author wants to reintroduce one of those historical wrongs into the world’s most powerful democracy.
In the end we all live our lives by some form of convention and human rights are one of them. Like all conventions however, different people will have diferent interpretations and some will simply deny the convention has any validity. It doesn’t help therefore to complain or object when fundamentalist clerics (Islamic, Christian, Jewish, Hindu – take your pick) urge actions by their adherents which don’t conform to our view of the world – they are not interested.
Not being a career philosopher I have never got my mind around the conflict between accepting that others will have different conventions and yet still wanting them to abide by mine. There is a conflict – we have to recognise that – but I don’t know how to reconcile it except by doing what I do – ignore it for most purposes!
I have read both OB’s and Norm’s updates, and I can’t see where they get us. If anything, Norm’s seem to further essentialise the whole concept of Human Rights. Norm says that he ‘believe[s] in human rights as the expression or embodiment of universal human needs and interests’, for which I say, ‘hoorah!’, but where does that get us — how is that statement different from ‘I believe in the father the son, etc etc’, or ‘I believe in the sublime purity of the Aryan race’?
Where were human rights in, say, 1600, when witches were burning like torches across Europe, and the Inquisition was in full swing? How can they be universal if they are bounded in time and space?
Universal Declaration of Human Rights, article 1: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ I make that at least three unprovable [and palpably false, at a day-to-day level] claims and a moral exhortation with no substance whatsoever.
Don’t get me wrong, I *believe* in these things too, but I know that I do because I want to, because they are a particular set of moral injunctions that I happen to share. It would be nice to make everyone else agree, but the only thing that will make them agree is their coming to agreement — and we are back to ‘convention’….
Ian, well, career philosophers don’t know how to resolve that conflict either. (Often, what philosophy gets you is even sharper awareness of how unresolvable some conflicts are, rather than spiffy new ways to resolve them.)
Dave – you think the idea of human needs and interests is just as airy as the father the son etc? I can’t say I do. That’s what I’m always driven back to when I get tangled in arguments about how to ground morality. Human needs – or preferences, capabilities, flourishing, or all those. Aristotle, Sen, Nussbaum, etc. Surely it’s not completely gestural to argue that humans do have certain needs – to survive, to avoid pain and suffering, to flourish – that can be linked to rights, and used both to expand and limit them. It’s all still arguable, I assume, but that’s not to say it’s completely vacant. Surely?
But yeah, about getting others to agree. That’s the rock, of course. They just don’t. But…sometimes, over time, when conditions are right, they do.
Dear OB,
The turning of the month has probably killed this discussion, but for the record I don’t think there’s anything ‘airy’, in that pejorative sense, in asserting that one has to make a moral choice in order to validate the ‘Human Rights’ concept. I know it’s nice to have grounding, it’s just not always possible. Indeed, the problem with the ‘rights’ concept is that it’s probably the hardest way to genuinely ground such assertions. If the whole debate was framed around ‘The Duties of a Civilised Society’, one could spell out the same aspirations to entitlement, without tying them to obvious falsehoods. But we’ve been stuck with ‘rights-talk’ since the 1770s, and probably always will be… As a professional historian of the C18, I admire the rhetoric of the rights theorists, but the social-contract boys are closer to the money, as it were. “Man is born free, and everywhere he is in chains”…
“I know it’s nice to have grounding, it’s just not always possible.”
Very true – alas. On the other hand, it also means loony sadists can’t have grounding for their crap ideas either.